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[2019] ZAFSHC 227
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Ncobo v S (A124 /2019) [2019] ZAFSHC 227; 2020 (2) SACR 412 (FB) (28 November 2019)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case Number: A124 /2019
JEFFREY
NCOBO
Appellant
and
THE
STATE
Respondent
CORAM:
MUSI,
JP
et
MBHELE,
J
JUDGEMENT
BY:
MBHELE
,
J
HEARD
ON:
4 NOVEMBER 2019
DELIVERED
ON:
28
NOVEMBER
2019
[1]
The appellant was, following his plea of guilty, convicted by the
Regional Magistrate, Bloemfontein,
of raping a 9 year old
complainant. He was sentenced to life imprisonment on 07 June 2017.
The appellant is the complainant’s
neighbour and her
grandfather’s friend. Aggrieved by the sentence, the appellant
exercised his right to automatic appeal,
due to the sentence of life
imprisonment imposed, and approached this court on appeal.
[2]
The offence took place on 1 January 2014. The appellant came home
drunk and saw the complainant
playing with other kids in the street.
He lured the complainant to his house by sending her to the shop to
buy him a box of matches.
On her way back he grabbed her and
penetrated her vaginally with his penis. His wife caught
him in the act.
[3]
In his notice of appeal the appellant contended that the court a
quo
erred in not taking into consideration the fact that he was, at the
time of sentencing, a 71 year old first offender who pleaded
guilty.
He submitted, further, that the court over emphasized the
seriousness of the offence and the interests of society
at the
expense of his personal circumstances.
[4]
The issue in this appeal is whether the trial court erred in
concluding that there were
no substantial and compelling
circumstances present that justified the imposition of a lesser
sentence than the prescribed minimum
sentence of life imprisonment
for the rape of a child under the age of 16
.
[5]
Before us, Mr Steyn, counsel for the respondent, conceded that the
court a quo should have
found that the appellant’s
age, remorse and guilty plea constitute substantial and
compelling circumstances
justifying a departure from the prescribed
minimum sentence. He submitted that the appellant’s advanced
age calls for imposition
of a sentence lesser than life imprisonment.
In his view 8 years imprisonment would be appropriate in the
circumstances.
[6]
The sentencing powers are pre-eminently within the
judicial discretion of the trial court, the court of appeal should
be
careful not to erode such discretion. The court sitting on appeal
will interfere if the sentencing court exercised its discretion
unreasonably or in circumstances where the sentence is adversely
disproportionate. See
S
v Rabie
1975 (4) SA 855
(A) AT 857 D-E also S
v De Jager and Another
1965 (2)
SA 616
(A)
[7]
When sentencing, the court must consider the main
objectives of punishment, being the prevention
of crime, retribution,
the deterrence of criminals, and the reformation of the offender.
Simultaneously, the court must strike
a balance between the crime,
the offender and the interest of society. The court should also take
into consideration the provisions
of Section 51 of The Criminal
Law Amendment Act 105 of 1997 ( The Act) where applicable. In
the end, the appellant
as an individual must be sentenced.
[8]
In
S
v Mudau 2013 JDR 0938 (SCA)
para 13
.
Madjiet
JA, as he then was, remarked as follows:
“
I
hasten to add that it is trite that each case must be decided on its
own merits. It is also self-evident that sentence must always
be
individualised, for punishment must always fit the crime, the
criminal and the circumstances of the case. It is equally important
to remind ourselves that sentencing should always be considered and
passed dispassionately, objectively and upon a careful consideration
of all relevant factors. Public sentiment cannot be ignored, but it
can never be permitted to displace the careful judgment and
fine
balancing that is involved at arriving at an appropriate sentence.
Courts must therefore always strive to arrive at a sentence
which is
just and fair to both the victim and the perpetrator, has regard to
the nature of the crime and takes account of the interests
of
society. Sentencing involves a very high degree of responsibility
which should be carried out with equanimity. . .”
[9]
It is so that sentence must be tailored to suit
the offender, the crime and the circumstances surrounding
the case.
In sentencing, a ‘one size fits all approach’ does not
translate into fairness and justice. Every case presents
its own
considerations, ranging from the facts and circumstances of the
offence to the personal circumstances of the offender and
the sentencing court must give due regard to all these factors.
[10]
The offence committed by the appellant is undoubtedly a serious
one. The appellant was
a friend to complainant’s
grandfather. He was like a family member to the complainant. The
complainant trusted him
and he, in turn, took advantage of her.
[11] The fact
that the Constitution regards a child’s best interests as of
paramount
importance must be emphasized. It is the single most important factor
to be considered when balancing or weighing competing
rights and
interests concerning children. All competing rights must defer to the
rights of children unless unjustifiable. Whilst
children have a right
to inter alia, protection from maltreatment, neglect, abuse or
degradation, there is a reciprocal duty to
afford them such
protection. Such a duty falls not only on law enforcement agencies
but also on right thinking people and, ultimately
the court, which is
the upper guardian of all children. See
De
Reuck
v DPP WLD
2003 (1) SACR 448
(WLD) at 457 par 10
[12]
It is clear from the above dictum that the rape of
minor children must be viewed in a serious light worst
if committed
by those entrusted with the care and safety of the child. Sexual
violence against children evokes communities’
indignation and
often prompts them to resort to self-help to keep their children
safe.
[13]
The complainant was violated at a place she was familiar with and
considered safe, a place that was supposed to
be her sanctuary. The
evidence of the complainant’s mother shows that the incident
has affected the complainant adversely.
The complainant has become
violent, she struggles academically and is unable to relate well with
her peers. She has turned rebellious
since this event.
[14]
In
S
v Malgas
2001 (1) SACR 469
SCA
it
was held that courts are required to regard the prescribed
sentences as “being
generally
appropriate’
for
crimes of the kind specified and enjoined not to depart from them
unless they are satisfied that there is weighty justification
for
doing so.
[15]
Mandatory sentences are not intended to strip judicial officers of
their ability to devise punishments
that fit specific crimes and
offenders and to temper such sentences with mercy if circumstances
warrant. As stated
supra
,
punishment must be proportionate to the offence.
[16]
When weighing up the mitigating factors against the aggravating
circumstances, as well as the interest of
community, I am persuaded
that justice will be served if the sentence imposed by the trial
court is overturned. Upholding it would
be to sacrifice the appellant
on the ‘altar of deterrence’ while turning a blind eye to
all the other objectives of
punishment and the provisions of the Act.
[17]
In my view the following circumstances are substantial and compelling
circumstances. The appellant
is a first offender; he was 71
years old and the sole breadwinner of his family. He committed the
offence while under the influence
of alcohol and showed remorse by
pleading guilty. The chances of him recidivating are slim.
Based on the substantial
and compelling circumstances that I
found I am of the view that the magistrate did not pay due regard to
the appellant’s
personal circumstances. Owing to the
misdirection committed, we are obliged to interfere with the
sentence. The peculiar circumstances
of the current matter dictate
that a sentence lesser than the life imprisonment imposed will serve
the purpose of punishment. The
appeal ought to succeed.
ORDER
[18]
The following order is made:
1.
The appeal
is upheld;
2.
The
sentence of life imprisonment is set aside and replaced with 10 years
imprisonment.
3.
The
sentence is antedated to 07 June 2017.
N.M. MBHELE, J
I concur.
C.J. MUSI, JP
On behalf of the
appellant:
Adv. V. Abrahams
Instructed by:
Justice Centre
BLOEMFONTEIN
On behalf of the
respondent: Adv. C.J. Steyn
Instructed by:
Director: Public
Prosecution
BLOEMFONTEIN